Tomorrow is the eighth anniversary of a horrible tragedy. On July 25, 2006 the Israeli Defence Forces targeted and repeatedly engaged the UN observation post in Khiam. The use of force on UN property and personnel resulted in the complete destruction of the observation post and the death of all four peacekeepers inside. Addenda: The soldiers killed were major Paeta Hess-von Kruedener, from Canada; major Hans-Peter Lang, from Austria; lieutenant senior grade Jarno Mäkinen, from Finland and major Du Zhaoyu, from China. Tomorrow I will visit the grave of my fallen brother-in-arms.
Today’s news, reporting that Israeli air strikes killed three UN Workers and hit a UNRWA shelter, are reminiscent of that day eight years ago. Therefore, from a deeply personal perspective, I find it necessary to broach this subject that seldom lends itself to a sane and calm debate.
“Proportionality is a construct that easily becomes unclear
I’ve written about the laws of war in the case of the downed Malaysian Airlines flight MH17. My commentary on the situation in Gaza will be within this dispassionate framework. That said, it is evident that such an approach is inadequate, as the conflict revolves around a faltering peace process, a non-viable state and a struggle for freedom and security, both Israeli and Palestinian. When both sides talk about retaliation and retribution it might be tempting to follow the cue and concede inter arma enim silent leges. My fellow blogger Corporal Frisk, who keeps a keen eye on the conflict, commented on the outcries of genocide in the conflict using the principle of proportionality. Well worth a read.
Note: The above two links are on Israeli statements. They were chosen for the express purpose of showing that both parties engage in a highly inflammatory and non-constructive rhetoric. I chose to omit Hamas’ statements as they are very widely known to promise revenge and retaliation.
Distinction
The principle of distinction rules that the parties shall at all times be able to distinguish between civilians, civilian property and military targets and may only engage the latter.
In the case of Hamas the issue is clear-cut. Hamas deliberately targets civilians as a modus operandi, thus justifying the label of a terrorist organization. The definition of levee en masse, granting the right to armed resistance, can’t be applied as there are no large masses of Gazan Palestinians arming themselves in organized resistance against an occupying force.
In the case of Israel it’s evident that identifying and defining military targets is problematic in the densely populated and built-up area of the Gaza strip as Hamas terrorists routinely use the cover of civilians and civilian property and use civilian disguise. These the facts of the environment, that the IDF is obliged to handle, no matter how challenging they might be found. The Israeli definition of valid targets, on the other hand, is fundamentally problematic. I will address this further down.
Propotionality and necessity
Proportionality is easier to address. The IDF obviously accepts a very high risk of collateral damage in its strikes. It’s obvious that targeting a built-up area, albeit with precision strikes, comes with the inevitable loss of civilian life and property. The collateral damage caused by IDF strikes also indicate that risks aren’t properly addressed in the targeting process and in selection of strike systems, often leading to substantial damage to civilian property and loss of life.
The rationale for the necessity is mainly focused on targeting Hamas’ underground and surface network of tunnels, with corridors for movement, strongholds and rocket storages. Entrances to tunnels emerge in or near civilian property and the storages of weapons above ground are on civilian property.
Do these facts negate the protection of civilians and civilian property? Actually they don’t. The prerequisite of engaging targets in these cases are that a warning is given. The IDF has issued such warnings, where it has deemed it applicable, including requests for civilians to evacuate the areas targeted.
Assessment
As stated obliquely in the above chapters, the IDF is fighting a terrorist organization in a non-international armed conflict. These facts often create a legal obstace course hard to negotiate. However, the key issue doesn’t disappear — the responsibility to protect civilians is paramount notwithstanding the purpose of the use of force. Israel is a State party concerned with this regarding the use of force, as the Palestinian National Auhtority (i.e. State of Palestine) is not using military force.
The problems with distinction become apparent when regarding the definition of a combatant. The Israeli definition of valid targets is very broad:
Our definition is that anyone who is involved with terrorism within Hamas is a valid target. This ranges from the strictly military institutions and includes the political institutions that provide the logistical funding and human resources for the terrorist arm.
Benjamin Rutland, IDF spokesman to BBC in 2009
Such a broad definition of a enemy combatant actually makes civilians military targets by association. This is contrary to the purpose of the Geneva conventions. The definition of a combatant is someone who is ”directly engaged in hostilities.”
Commentary: It should be noted that Israel is not a signatory to the Additional Protocols of the Geneva conventions, but the Israeli High Court of Justice and the State of Israel in its submissions to HCJ have upheld that most articles apply as customary law on the conduct of IDF in operations in the occupied territories.
“IDF is fighting a terrorist organization
Proportionality is a construct that easily becomes unclear, vague and general if applied outside the scope of the targeting process. Proportionality must be addressed case by case, e.g. the use of precision guided weapons does not per se constitute proportionality. There is no such thing as ”proportional warfare” in general, but only individual strikes that either are proportionate or disproportionate with regards to the loss of civilian life and property.The ridiculous metaphor on proportionality by New York City Mayor Michael Bloomberg perfeclty illustrates this common misconception and misuse of ”proportionality.”
I will also argue that necessity can’t be properly assessed, as the principle of necessity deals with actions designed to bring about the military defeat of the enemy. Conventional wisdom has it that engaging terrorists (ie. combatants) in a way that causes devastating collateral damage only increases the conversion of civilians to extremism and strengthens the terrorist support base.
If so, either a doctrine of total war should be pursued or the applicability of military force questioned and other mechnisms for promoting security considered. For half a century, this has been an object of constant debate in Israel featuring both doves and hawks and changes in policy. Today, the doves seem almost extinct.
Conclusions
The laws of war in this case only apply on Israeli use of force. The discretion of using force lies with the IDF. The IDF bears the responsibility of protecting civilians in the areas where force is used. This protection is realized by distinguishing targets and addressing proportionality in choice of systems used in engagements. The IDF definition of valid targets is vague and makes civilians terrorist by association, thus also brining a certain open-endedness to considering proportionality.
With regards to the killing of UN personnel described in the introduction, it is widely accepted that UN personnel should enjoy special protection from the use of force by the belligerent parties, yet it is important to note that Israel has not signed the Convention on the Safety of United Nations and Associated Personnel.
The conflict in Gaza brings about inhumane suffering. It is evident that the use of force won’t solve the crisis as it will further weaken the Palestinian National Authority and its ability to create and maintain a safe and secure environment. The international community, under the leadership of the United States, should take resolute measures to solve the key issue, the protection of civilian lives from the terrors of war.
Random thoughts 